At Liberty Podcast: 2022 Wins with David Cole

KENDALL CIESEMIER
From the ACLU, this is At Liberty. I’m Kendall Ciesemier, your host.

As we near the end of the year, we are bringing you an episode of reflection. A lot has happened in the world, in our country and in our work at the ACLU.

While we have weathered devastating losses like the overturn of Roe v. Wade this past summer, there are still meaningful victories we can celebrate this year and build on in the coming year. We’ve successfully fought back in courts all across the country on behalf of abortion access, racist and homophobic education gag orders, immigrant rights, voting rights and so much more.

So today we are regrouping with the ACLU’s National Legal Director, David Cole, to talk through where we can find hope this year and also where we can continue to press forward. So with that, let’s jump right in.

David, welcome back to At Liberty!

DAVID COLE [00:01:09] Thanks for having me, Kendall.

KENDALL [00:01:10] So it’s been a year full of a lot of emotion. And most of it, I think for people listening, probably feels negative. There’s been a lot of disappointing news, especially from the Supreme Court. The most memorable being the Dobbs decision in June overturning Roe v Wade. But in light of that, we’ve also had a lot of wins in restoring or protecting abortion access. We know you as the eternal optimist at the ACLU. So I want to talk first about our wins. And we’re calling them wins because we’re keeping access open in certain parts of the country. So I’m thinking about Ohio, Arizona, Kentucky. Can you highlight some of the reproductive freedom wins we’ve had this year?

DAVID [00:02:00] Sure. Yeah. I mean, you know, you’re absolutely right. The year of 2022 will be marked forever as the year that the Supreme Court exercised its newfound political power, given to it by Donald Trump’s three appointees to overturn a 50 year old precedent that every woman of childbearing age has relied upon, and that is devastating. But it’s not the end of the story. It’s never the end of the story. Right. And we’ve gone into a number of courts relying on state constitutional arguments to challenge a new abortion ban, abortion bans that were triggered by the decision and in Dobbs or were enacted shortly thereafter. Yeah, and as you indicated, we were successful in Ohio in blocking a ban in Guam, in Kentucky, in Florida, although that win has been stayed pending appeal. It’s on appeal, but we won in the trial court. And in Arizona, we successfully challenged a fetal personhood provision. So we are making progress even in that area, which is an area where the court basically took the rug out from under, you know, every woman in this country. We’ve nonetheless been able to fight back. And, you know, we’ve fought back not just in the courts, but also politically with the victory, the referendum victories in Kansas, in Michigan, in Kentucky, in Maine, in California. So I think there’s even in the sort of darkest area of our civil liberties world right now, there’s been light, you know, and it’s because people have not accepted the laws but, you know, fought back at every stage.

KENDALL [00:03:49] Yeah, it’s always amazing to me. We saw in the midterms with the different victories in the States, people actually got to cast their ballot for abortion and it was wildly popular. It’s amazing if you give it actually back to the States what we can do. But it’s also nice to hear that we have had some success in the courts because I know that, you know, the people can vote, but we have to have litigation working in tandem with legislative change in order to actually pry open access. Where are we going to be focusing next year with regard to abortion rights?

DAVID [00:04:31] Well, I think it’s going to be more of the same. I think we have to keep up the pressure, particularly, I think, putting it on the ballot where it can be put on the ballot, where we can get popular referenda. I mean, the fact that we’ve been able to prevail in popular referenda in places like Kansas and Kentucky suggests, you know, it’s important to get it on the ballot. Not every state allows you to get it on the ballot, but where we can, I think we should.

KENDALL [00:04:55] Why wouldn’t a state allow, like what would prohibit us from getting it on the ballot in some states?

DAVID [00:05:01] States have different rules about what you can do through popular referenda. In some states, virtually you know, everything’s on the table and you can put anything on, make law. We will also continue to litigate using state law arguments where, you know, state constitutions are permitted to be more protective than the federal constitution. And so that’s an avenue in some places. We also, you know, I think, sadly, we will be in the business of defending people who are prosecuted for providing abortions, for providing assistance to people who need abortions, for maybe even for self managed care. You know, that remains to be seen. We are gearing up in the legal department, creating a project that will be ready to assist people who are prosecuted for providing or assisting in the provision of abortion care. I think they’ll be a whole set of questions about how far states can go in prohibiting women from traveling across state borders from a state that bars abortion to a neighboring state that allows abortion. Some of those states are going to and some already have begun to try to limit their citizens’ ability to travel to another state to get a medical service that is legal in that state. That raises a whole host of serious constitutional questions that we are ready and prepared to litigate. So there’s still a heck of a lot of work to be done in trying to get back this critical right.

KENDALL [00:06:39] I obviously have a million follow up questions, but this is a review of the year, so we’re going to move on to other issues. I want to talk about other significant victories. Just recently we had a huge win in Florida. We stopped the Stop Woke Act, at least for now. This is our first victory in our effort to fight back against not even necessarily critical race theory, just the education gag orders that are taking place across the country, in our school districts and this conversation about whether or not we can teach accurate history that includes, you know, cultural sensitivities. How did we do this?

DAVID [00:07:21] Yeah. So the Stop Woke Act is one of the state laws that have been popping up around the country that, frankly, Republicans are using as a kind of wedge issue, as a kind of cultural war issue in which they essentially try to prohibit the teaching of certain kinds of ideas about racism in this country, that certain kinds of racist events have happened, that there is some sort of collective responsibility for the kind of systemic subordination that this country has practiced, those kinds of ideas. A number of legislatures, including Florida, have basically tried to ban, to prohibit the teaching of those ideas. And in Florida, they did it through this thing called the Stop Woke Act, which basically identified about a dozen politically incorrect ideas from the standpoint of the right wing, all of them having to do with race and history and justice, and then seek to prohibit all teachers, including teachers in public universities, from endorsing these ideas. And the legislature says, well, you can mention the ideas, but you can’t endorse the ideas. And we challenged that on First Amendment grounds. University teachers have the right to teach, you know, whatever ideas they want to teach, and the distinction between endorsing an idea and mentioning an idea is extraordinarily vague. And so this law was having the effect of chilling the ability of people to honestly talk about our history and our collective responsibility for responding to and being accountable for that history. So federal court issued a 130 page opinion finding this law unconstitutional under the First Amendment. Yes, Governor DeSantis and the state will appeal, but I’m optimistic about our ability to succeed on this one. Just, you know, the notion that legislatures should be identifying political ideas that can’t be, essentially can’t be discussed in colleges is unacceptable under the First Amendment. And so I’m proud of the ACLU for challenging it where it has appeared. And I’m really grateful for this victory.

KENDALL [00:09:51] Yeah, I mean, I think this is a very important victory, especially given, you know, the rise in these kinds of conversations in the country. And I think it’s encouraging to hear that a federal court can see that that’s not okay. It’s not okay. It’s encouraging.

DAVID [00:10:09] Yeah. I mean, you know, the sort of the big picture is, I think in the wake of last year’s Supreme Court decisions, many people thought, oh, Jesus, we can’t get any justice from the courts anyway. This is, I think what people sometimes forget is that that may well be true at the Supreme Court for the cases that get to the Supreme Court, but the vast majority of cases never get there. The court only takes about 60 to 70 cases a year, and many, many cases get resolved below. And the Supreme Court either doesn’t agree to review them or isn’t asked to review them or the cases settle or what have you. And I think what we found at the ACLU is we’re still winning. You know, I polled our staff on wins over the last like five months or so, essentially since the Dobbs decision, and we had a list of 50 wins. Some in state court, some in federal court, some in courts of appeals, some in trial courts, but on a whole range of subjects, you know, from people facing the death penalty, where the states agreed not to seek the death penalty and to enter a plea of a life sentence instead to decisions declaring the entirety of the Arizona prison system unconstitutional in terms of the conditions it provides to its prisoners to a decision blocking Governor Abbott’s effort to describe parents providing gender affirming care to their kids as child abuse. We enjoined that in state court and even a decision declaring the right of Tofurky to call its product a turkey like product. So, I mean, you know, it’s really, I think, should be very encouraging that all is not lost. Yes, we face a much more challenging situation, especially at the Supreme Court, but we can still make significant progress in the courts. And we need to keep fighting in the courts for the rights of folks who can’t get their rights protected through the political process.

KENDALL [00:12:21] Thank you so much for that overview. I want to touch on a couple of the things that you highlighted. One being you mentioned that last year, Texas Attorney General Ken Paxton issued an opinion that stated providing gender affirming health care to transgender adolescents constitutes as child abuse, and then Governor Greg Abbott of Texas directed the State Department of Family and Protective Services to investigate for child abuse anyone who provided such care to trans youth. The ACLU, ACLU of Texas immediately got to work challenging this pursuit under state law. This to me represents, this victory that we had represents something I think that we’re seeing also in other states across the country. We’re seeing variations of this kind of anti-LGBTQ, anti-trans sentiment, whether that be in sports bans or in health care bans. What do you expect us to see come out of this case and where do you think the rest of, you know, we were just arguing a case in Arkansas about trans health care. What do you think is on the horizon for us in the new year?

DAVID [00:13:45] Well, I think this is like the effort to go after critical race theory. This is another wedge issue that the Republicans have, you know, have decided they can, you know, gain political traction on by targeting people who don’t have a lot of political power. And we’ve been successful in courts in enjoining these laws because they’re so often completely unjustified where they have no, you know, medical or health based support. They contravene the advice of the medical establishment. And so, yeah, I mean, as you as you pointed out, we just finished closing arguments in Arkansas and a challenge to a ban on gender affirming care for youth there. And we’ve already, in that case, obtained a preliminary injunction, got that preliminary injunction in Arkansas affirmed by the Eighth Circuit, which is one of the most conservative courts of appeal, federal courts of appeals in the country. They denied the state’s petition for rehearing on bond. You know, we’re now, I think, likely to get a victory, permanent injunction victory in the district court, which will then be appealed. But I think this is a campaign that is based on ignorance. It is based on phobia and it’s based on animus. And when, you know, when you go to court and the other side has to put up something other than ignorance, animus and phobia and actually has to put on facts, we win. And so, you know, we will continue to fight in the legislatures and in the courts. And so we’ve made it one of our priorities to try to basically extend equal dignity to all people regardless of their gender identity.

KENDALL [00:15:41] Right. Okay. I want to move on to another issue area. We have some news on immigrant rights, particularly with what’s going on with Title 42. So first, before we get to the news, can you just give us a reminder, what is Title 42?

DAVID [00:16:02] So Title 42 is a provision that allows the invocation of a public health emergency as a justification to stop people from coming across the border. And Donald Trump invoked it during COVID as one of the many, many excuses that he used to block immigration at the southern border in particular. And when he announced it, we immediately challenged it first on behalf of kids coming in seeking asylum. That is not just any kid, but kids coming in who had a credible claim that they would be persecuted for their political views or the political views of their parents if they were sent back to the country from which they came. And Trump was just turning them around on the basis of Title 42. And we got a preliminary injunction with respect to kids. We expanded that to families. It went up on appeal or we won on appeal on a preliminary injunction, and we recently won a permanent injunction in the trial court. And that’s necessary because even though Trump put this in place and even though the, you know, the COVID emergency has pretty much dissipated, I mean, not that COVID is not around, but it’s no longer an emergency. The Biden administration has not yet, you know, been willing to lift the program. So we’ve had to fight for it in the courts, and we have and we’ve prevailed at every step of the way, most recently with a permanent injunction the week before Thanksgiving. Hugely important because it was sort of a barrier to anyone being able to seek refuge here in this country, coming from across the southern border.

KENDALL [00:17:58] I want to shift again to our victory in Arizona with prisoner rights. So in Jensen versus Shinn, we challenged conditions in Arizona’s ten state-operated prisons. After a three week trial, a district judge found that prisoners’ constitutional rights were violated as they were not even given remotely adequate medical or mental health care. This decision affected close to 27,000 people. I think that is amazing and that is something that I feel like we don’t necessarily hear as much about these victories.

DAVID [00:18:38] Yeah. So I think, you know, one of the real unsung heroes within the ACLU is the National Prison Project, which is, has been around for a long time, has been a project within the ACLU, I don’t know probably 40 years or something, maybe even more, quietly going about the business of advocating on behalf of the most vulnerable people in this country, people who are behind bars, people who everybody wants to sort of just forget about. We don’t care about them. If we care about them, we just write them off as criminals and they deserve whatever they get and they have no political power. This is not something that it’s easy to raise money to do to advocate on behalf of prisoners. But we’ve been committed to it for a long, long time. And this Arizona case is an example, right, where we filed the lawsuit that is going to improve conditions for, you know, 27,000 people for conditions with respect to, you know, basic health and mental health treatment in those prisons. You know, it will lead to a massive relief order and real oversight and monitoring to make sure that we, you know, treat people as human beings, even when they have been locked up. But the National Prison Project at the ACLU particularly, you know, the sort of importance of that project to our work and to the, you know, the protection of people behind bars, I think became most clear during the pandemic.

KENDALL [00:20:15] Yeah.

DAVID [00:20:15] Well, yeah. When I mean, you know, just in the worst place you can be in COVID in the early goings was in a prison. I mean, talk about a congregate care facility. And there were no protections. And so, you know, we really focused on filing suits in as many big jail and prison systems around the country and in many of those places, obtained victories that either in some instances required significant releases of people because the prisons simply could not, at the levels of the population within the prison, could not provide for safe facilities. And so they had to reduce the number. And in other places, we got court orders that required the prisons to essentially follow CDC guidelines and protect people in prisons in the same way that many states were requiring people be protected outside of prison. You know, you get sent to prison, you’re not supposed to, it’s not a death sentence but in COVID, it often was. So, you know, it’s always been a very effective project. And one of the things about prison work is because it doesn’t get a lot of attention, doesn’t get a lot of headlines, doesn’t get a lot of, you know, financial support, there aren’t that many organizations across the country that do this work. And the National Prison Project really is, you know, a national leader in this critical area.

KENDALL [00:21:39] We’ve done a lot of work this year in the voting rights space to both fight racial redistricting and partisan redistricting. We’ve had you on to talk about some of the cases that we’re worried about, Milligan v. Merrill and Moore v. Harper come to mind, one of which is actually being argued in the court currently and we’ll be awaiting decisions from the Supreme Court on both of those in the next year. But can you tell us a bit about where we’re fighting forward in voting rights? Obviously, we just had the midterms. We did see some, like I said, small victories here and there in different states, maybe notably our win out of Louisiana. What can you say about the future of voting?

DAVID [00:22:29] Well, you know, what I can say is it is the future of the country, you know, is voting and we will always have to be out there ready to fight against efforts to suppress votes, to deny access to votes, to make it harder for people to vote. And, you know, we continue to do that work. We do that, we did that work at the midterms. We did that work coming up to the midterms. We had a big win in Montana that required that state to provide Election Day registration and to make it easier for Native Americans who don’t live near a polling place to get their votes counted. We have to fight to get votes counted. So in Pennsylvania, we litigated a case all the way up to the Supreme Court that involved whether absentee ballots that were timely filled out, that were timely received, that were signed by the voter, where the voter was eligible, but the voter forgot to put a date on the outside of the envelope, a date that didn’t actually matter to the validity of the of the ballot. But we had to fight all the way up to the Supreme Court to get those votes counted. And then and so we will continue to be doing that kind of work. But in addition to the efforts to make sure that people have access to the ballot and that the votes are counted, which is sort of Democracy 101, we also have to fight redistricting. And you know, in the wake of the census, we challenged redistricting plans in Georgia, in Alabama, in Louisiana, in South Carolina, and we won in Alabama. The win has been stayed pending the appeal to the Supreme Court. We won in Louisiana. That decision has also been stayed pending the outcome of the case in Alabama. In Georgia, I think we are likely to prevail, though the court didn’t ultimately rule because it knew that it would have its decision stayed given the pending appeal in the Alabama case. And we just finished closing arguments in a challenge to racial gerrymandering in South Carolina, where I think we’re very likely to get a victory there. So how these victories will look after the court decides Merrill versus Milligan, which was the Alabama case, you know, remains to be seen. But I think, you know, having attended the argument in that case, I think the Voting Rights Act is going to survive whatever decision the court issues there. And Ohio’s another one, I didn’t mention Ohio, but Ohio is a place where we succeeded in challenging a partisan, gerrymandered map that gave a place that’s basically half and half of the state of Ohio. They created a map where there were 12 Republican seats and three Democratic seats. And through that litigation, we’ve already got it to ten Republican seats and five Democratic seats. And the courts have said that that, too, is partisan gerrymandering, because it really should be in light of the division within the state, if they’re going to be accurately reflecting the division with the state, it should be closer to eight or six or something like that.

KENDALL [00:25:50] Yeah.

DAVID [00:25:51] So, you know, democracy doesn’t run itself, unfortunately.

KENDALL [00:25:57] I wish it did so you could just go to bed, you know?

DAVID [00:25:59] Well, exactly. But people you know, people are all, sadly you know, people are always going to try to rig the system to favor one party over another or one race over another. And what we stand for is not one party or the other, but making sure that everybody gets their votes counted and that the districts are not skewed in ways that don’t reflect the people that vote for the candidates.

KENDALL [00:26:24] Yeah, absolutely. You know, when you talk about all of these cases and all of this pending progress and we get a victory and then it gets appealed or stayed or all of these, you know, just paused. We get to celebrate, but also, there is a pause. Does it ever feel frustrating to you that we can’t just, like, have a clear cut, end of decision victory on things these days? That I mean, maybe that’s always how it’s been, but it feels like our progress is so incremental sometimes that, well, you know, it’s tough.

DAVID [00:27:06] It’s yeah, it’s always frustrating. Absolutely. But look, the situation would be so much worse if we weren’t fighting back, if people weren’t going out in the streets, if people weren’t voting like their rights depended on it, if women were not fighting to get back their right to abortion, if trans folks were not fighting for their equal dignity, I’m just proud to be part of that fight alongside the far too many people in this country whose rights get ignored or, you know, kicked to the side.

KENDALL [00:27:40] Okay. I have two more questions before I let you go, if that’s alright with you.

DAVID [00:27:45] Yeah. Yeah.

KENDALL [00:27:46] So one is about the op ed that you just wrote in The New York Times about the 303 Creative case. The op ed is titled “The Supreme Court Is About to Ask the Wrong Question About the First Amendment.” I think you’ll do a better job summarizing what you wrote about. So can you tell us about the case and the question that you think is wrong?

DAVID [00:28:12] Yeah, happily. So you know, so 303 Creative is essentially a replay of a case called Masterpiece Cakeshop v. Colorado Civil Rights Commission that I argued on behalf of the gay couple who was denied a cake and I argued that five years ago, five years ago to the day that the Supreme Court…

KENDALL [00:28:32] History repeats itself, David.

DAVID [00:28:34] …heard argument again in 303 Creative. And in Masterpiece Cakeshop, the baker said that he had a First Amendment right because his cake was creative, First Amendment right to refuse to serve gay couples because he opposed same sex marriage. The Supreme Court did not recognize that right. It did ultimately rule for him but on a ground of religious discrimination by the Colorado, you know, administrative agency that adjudicated his case so they didn’t give him the right he wanted, which is the right to continue to discriminate. And in fact, he has to serve cakes to everybody. But the lawyers that represented him from the Alliance Defending Freedom brought another case on behalf of a woman who is a web designer and claims she wants to create a wedding website design service but doesn’t want to serve gay couples. And so it’s the same thing, except that in this instance, she’s never actually created a wedding website and she’s never turned away a gay couple. But she’s gone in and said, I’m chilled. I can’t create this business if I know that I have to serve all comers equally and I would have to serve gay couples. And she lost, she lost in the lower courts but she asked the Supreme Court to review the case. And the way that they presented the question and the way that the court accepted the question was, can an artist be compelled to create a Website for an event that she opposes? And my argument in The New York Times op ed is that that’s the wrong question, because if that’s the question, you know, artists cannot be compelled to, you know, engage and create art that they don’t want to create but that’s not what the Colorado public accommodations law that is at issue does. What it does is it says if you open a business to the public and only if you open a business to the public, then you have to serve the public equally. You know, the two key points that I tried to make, you know, in response to the argument that she is compelled to make a website with which she disagrees are one, she is not compelled in any in any meaningful sense because, first of all, she doesn’t have to open a business to serve the public. Plenty of artists and writers and photographers operate freelance. They write for who they want. They write on individualized contractual bases. They don’t offer to write for the public at large. They don’t offer to take anybody’s picture and they’re not public accommodations. They’re not governed by these laws. So if she doesn’t want to serve gay couples, she doesn’t have to then she she shouldn’t create a business open to the public. And the second point is, even for businesses that choose to open to the public, the law does not tell them what they must sell. It leaves to them a decision about the content of what they sell. So, for example, you can open a Christmas store in Colorado and sell only Christmas items. And you are not discriminating on the basis of religion if you don’t sell Hanukkah candles and Kwanzaa cards. However, if you put a sign up on your door and say, no Jews or no Blacks can enter, you know, now you have violated that law.

KENDALL [00:31:53] So what do you make of the court taking up the case with this question?

DAVID [00:32:00] Well, I think they are inclined to rule in her favor. They wouldn’t have articulated the question in that way without so they are signaling where their gut is. And I think at the argument on Monday, they made that pretty clear. But I think it’s a really dangerous direction to go because what it basically would say and what the Alliance Defending Freedom is asking for is a ruling that says if your business is expressive, if something about what you provide has a First Amendment expressive element to it and it’s custom, you can turn people down if it would offend your conscience to serve them. So it’s not limited to weddings, not limited to website designers. It would apply to the baker who refuses to make a happy birthday cake for a Black family because he doesn’t think Black kids should be celebrated. That’s a First Amendment right. You know, you can have that view under the First Amendment. You can express that view under the First Amendment, but you can’t discriminate on the basis of race because of that view. But if they prevail, then, you know, think of all the businesses that have some expressive element…architects, hair stylists, nail salons, tattoo parlors.

KENDALL [00:33:14] I mean, and then the boundaries of expression are the things that people go after, right? Like what all could be kind we claim as expressive?

DAVID [00:33:22] I mean, you know, the Masterpiece Cakeshop. Yeah. You know, a cake is expressive. When we argued that case, I said, you know, we can see that the cake is expressive, but that’s not the issue. The issue is should a business that chooses to open to the public…

KENDALL [00:33:38] be able to discriminate.

DAVID [00:33:38] …should it be able to discriminate just because what it sells is expression. I think bookstores should be subject to the same rules as, you know, plumbers and hardware stores.

KENDALL [00:33:51] Wow. Well, it will definitely be interesting to watch what happens. Final question, David. How are you feeling about the future? Are you still as optimistic as ever?

DAVID [00:34:04] Look, you know, I mean, I don’t think anybody could be as optimistic as ever. It’s a tough time. There is no question that it’s a, we are in challenging times. But I will say that I, I think the strength of this country rests, and the strength of civil liberties and civil rights in this country rests not on governmental institutions, not on the courts. I mean, we need the courts at times. But what it really rests on…

KENDALL [00:34:36] People.

DAVID [00:34:37] …are people and on people working together in civil society through organizations like the ACLU or the Legal Defense Fund or a Human Rights Campaign or what have you, fighting for the rights that they believe in and using the First Amendment, which we’ve been talking about, to defend equal rights. And, you know, I’ll say, you know, as I said before, you know, I’ve been a lawyer now for 40 plus years and the world is a lot more equal today than it was when I graduated from law school and there’s still a tremendous amount of inequality. But I think we sometimes focus on the shortcomings without really, and sort of take for granted some of the real progress. But, you know, we’ve made tremendous progress on women’s rights, on our equity and inclusion, on LGBT rights, on disability rights. So, you know, and that’s because we have robust organizations and committed citizens who believe in these values and are willing to come together and fight in a strategic and coordinated way, because that’s the only way that you ultimately can realize the promises that are on paper in the Constitution.

KENDALL [00:35:57] I have to agree with you. I have to agree with you. I think we’ve seen in the last year that when it matters, we’ve shown up as a people, as a collective far beyond the ACLU and that’s really exciting to see.

DAVID [00:36:13] Yeah, as the ACLU says, we show up.

KENDALL [00:36:18] Yeah, that’s the thing. Thank you so much for joining us again. It’s such a pleasure to do these recaps with you. I know that I love it. The audience loves it. We can’t get enough. So I appreciate your time, David.

DAVID [00:36:33] Well, great to talk to you. And, you know, I appreciate you and appreciate all those who listen in and and see themselves as ACLU members and supporters because, you know, this is a critical organization in the fight for civil liberties. Thanks a lot.

KENDALL [00:36:53] Thanks so much for listening. If you enjoyed this episode, please subscribe to At Liberty wherever you get your podcasts and rate and review the show. We really appreciate the feedback. Until next week, stay kind.